United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2916

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Verle E. Olson, also known as *

Tony Olson, *

*

Appellant, *

*

v. *

*

Harold Clarke; Ben Nelson; * Appeal from the United States

John Dahm; John Doe; J. Hansen, * District Court for the 

P.A.; Carolyn Greunke; Judy * District of Nebraska.

Rimel; Department of *

Corrections, of Nebraska; Dr. * (UNPUBLISHED)

Osborne; Lincoln General *

Hospital, *

*

Appellees. *

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 Submitted: March 18, 1997

 Filed: May 5, 1997

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Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

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PER CURIAM.

Verle E. Olson appeals from the district court's order,

dismissing as frivolous claims against certain defendants and

dismissing sua sponte under Federal Rule of Civil Procedure

12(b)(6) claims against other defendants in this 42 U.S.C. § 1983

action alleging Eighth Amendment violations. We affirm in part and

reverse and remand in part.

Olson, a Nebraska prisoner, alleged in his November 1995

complaint filed in forma pauperis that he had had a hydrocelectomy
 The Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 1

104-134, § 804(a)(5), 110 Stat. 1321 (1996) (to be codified at 28

U.S.C. § 1915(e)(2)), now authorizes the district court to dismiss

a complaint filed in forma pauperis "at any time if the court

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at the Lincoln General Hospital to remove a hydrocele (an abnormal

collection of fluid) on his testicle, and that he subsequently

complained of a painful lump at the surgical site, but prison

medical staff delayed and denied him medical treatment. Olson

named as defendants Governor Ben Nelson, Department of Corrections

Director Harold Clarke, Omaha Correctional Center (OCC) Warden John

Dahm, OCC medical director Osborne, nurses Judy Rimel and Carolyn

Greunke, physician assistant Jeff Hansen, Lincoln General Hospital,

and the Department of Corrections. He sought damages and

injunctive relief. In an amended complaint, Olson attached copies

of inmate interview requests responded to by Hansen and Rimel,

which documented his unsuccessful attempts to be examined by a

urologist, the delay in his receipt of treatment, and his

complaints of continuing pain. He additionally alleged that Hansen

examined him but failed to provide or delayed treatment, and that

while Rimel scheduled appointments for Olson to be examined by a

physician, his appointments were canceled, and several months

passed before he finally obtained an examination by a Dr. Cherry,

who also failed to provide treatment. 

Without ordering service on defendants, the district court

dismissed as frivolous Olson's claims against Governor Nelson,

Director Clarke, and Lincoln General Hospital, concluding Olson

failed to allege how Nelson and Clarke were personally involved,

and failed to allege facts establishing that the hospital was a

state actor or conspired with state actors to violate his

constitutional rights. The district court dismissed Olson's action

as to the remaining defendants pursuant to Rule 12(b)(6) for

failure to state a claim. The district court acknowledged that 1
determines that . . . the action . . . fails to state a claim on

which relief may be granted." 

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Olson's injuries were serious, but suggested that Olson had failed

to allege sufficient facts to establish deliberate indifference by

any defendant. The court noted that Olson had been examined by

nurses and doctors after his surgery and that a disagreement with

the course or efficacy of treatment did not rise to the level of a

constitutional claim, nor did allegations of negligence state a

claim under section 1983. 

We review de novo the dismissal of a case for failure to state

a claim; a complaint should not be dismissed unless it appears

beyond a doubt that the plaintiff cannot prove any set of facts in

support of the claim that would entitle the plaintiff to relief.

See Dicken v. Ashcroft, 972 F.2d 231, 233 (8th Cir. 1992). To

state a claim for an Eighth Amendment violation, Olson must allege

facts sufficient to support his claim that prison officials were

deliberately indifferent to his serious medical needs. See Estelle

v. Gamble, 429 U.S. 97, 104 (1976). 

We conclude that the district court, which must assume Olson's

allegations are true, erred in dismissing claims against physician

assistant Hansen and nurse Rimel for failure to state a claim.

Olson's allegations as to these defendants, which include requests

for additional treatment following the discovery of a lump,

continued pain due to lack of treatment, a delay in treatment, and

a denial of a request for a referral to a specialist, are

sufficient to satisfy the deliberate indifference standard. See,

e.g., Ellis v. Butler, 890 F.2d 1001, 1004 (8th Cir. 1989) (per

curiam); Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989). We

conclude that the district court could not determine, without

improper speculation, that any delay in addressing Olson's concerns

was not due to deliberate indifference. See Ellis, 890 F.2d at

1003-04. Further, although Olson was examined by a physician

assistant and, eventually, by a prison physician, he could be 
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entitled to relief if he can prove that the "course of treatment,

or lack thereof, so deviated from professional standards that it

amounted to deliberate indifference." Smith v. Jenkins, 919 F.2d

90, 93 (8th Cir. 1990).

We conclude, however, that the district court properly

dismissed as frivolous the claims against Clarke and Nelson, see

McDowell v. Jones, 990 F.2d 433, 435 (8th Cir. 1993) (holding that

supervisor liability under § 1983 requires proof that the

supervisor personally participated in or had direct responsibility

for the alleged violations), and the Lincoln General Hospital, see

Gentry v. City of Lee's Summit, 10 F.3d 1340, 1342 (8th Cir. 1993)

(holding that § 1983 liability requires a defendant to have acted

under color of state law). We also conclude the claims against the

Department of Corrections were properly dismissed. See Monell v.

Department of Social Servs., 436 U.S. 658, 694-95 (1978) (holding

that municipal liability under § 1983 requires proof of an official

custom, policy, or practice that caused the alleged violations).

In addition, Olson failed to allege any facts supporting a claim

against nurse Greunke, Dr. Osborne, or Warden Dahm. We leave for

the district court to determine whether Olson may amend his

complaint to add Dr. Cherry as a defendant.

Accordingly, we affirm in part and reverse and remand in part

for further proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.